Part 2, from,Who Are The Founders For DACA? ,President Donald Trump’s decision to end the Obama-era Deferred Action for Childhood Arrivals program has been criticized, by Democrats and Republicans alike, as “cruel,” “inhumane” and “unconscionable.” It is also quite likely illegal. The decision is being implemented in a way that appears to violate the Administrative Procedure Act, and the courts might well block the Trump administration’s action on those grounds.
The Administrative Procedure Act, sometimes called the “Magna Carta of administrative law,” is a 1946 statute that governs hundreds of federal agencies, including the Department of Homeland Security. It requires that agencies go through a process known as “notice and comment” before issuing, amending or repealing “substantive rules.” As part of that process, the agency must publish proposed actions in the Federal Register and then give the public at least 30 days to submit feedback. When it finalizes its proposal, the agency must respond to issues raised by the public comments and must explain why it settled upon the course of action that it chose. The explanation must show why the agency’s action is reasonable and not “arbitrary” or “capricious.”
In hundreds of cases, the federal courts have had to decide what counts as a “substantive rule” to which the notice-and-comment requirement applies. In a nutshell, a substantive rule is an agency action that alters the rights or interests of parties, changes the background regulatory regime and has a present and binding effect. Sometimes, agencies will take actions that do all of these things but are labeled as “policy statements” rather than “substantive rules.” In those cases, federal courts will block the agency from carrying through on its policy until it goes through the notice-and-comment process.
That’s what’s likely to happen here. On Tuesday, Acting DHS Secretary Elaine Duke sent a memo to other officials in her department regarding the Deferred Action for Childhood Arrivals, or DACA, program. Since its inception in 2012, DACA has allowed more than 800,000 undocumented immigrants who arrived in the United States before their 16th birthday to obtain work permits and certain other benefits. Immigrants eligible for DACA, known as Dreamers, must file an application with DHS and must seek renewal of their status every two years.
That will now change. Duke’s memo says that “[e]ffective immediately,” DHS will “reject all DACA initial requests” filed after Tuesday. It goes on to say that the department will “reject all DACA renewal requests” received after October 5 of this year. The memo has all the signs of a substantive rule. It alters the rights of Dreamers, who now cannot obtain work permits and other privileges associated with deferred action status (such as Social Security benefits). In so doing, it changes the background regulatory regime. And as the memo makes clear, it has a present and binding effect on DHS officials and on hundreds of thousands of Dreamers.
Since it announces a substantive rule, the memo is subject to the notice-and-comment requirement. But DHS has given no indication that it intends to go through the notice-and-comment process here. Instead, Acting Secretary Duke has moved ahead without giving the public 30 days to submit feedback. That’s a violation of the Administrative Procedure Act, and it would give a federal court a basis for blocking the department from carrying through on its new substantive rule.
There is, to be sure, a wrinkle in this argument. The wrinkle is that then- DHS Secretary Janet Napolitano did not go through notice and comment when she announced the DACA policy by memorandum back in 2012. The Trump administration will likely say that if DACA didn’t need to go through notice and comment initially, then DHS shouldn’t have to go through notice and comment now when it rescinds DACA. And if DACA did need to go through notice and comment initially, then DACA itself is procedurally invalid and should be set aside on those grounds.